Juka v Bankstown City Aged Care Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Juka v Bankstown City Aged Care Ltd [2023] NSWPIC 30
APPLICANT:	Dijana Juka
RESPONDENT:	Bankstown City Aged Care Ltd
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	24 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; accepted claim for carpal tunnel syndrome of right wrist; claim for cost of carpal tunnel release surgery disputed; disputed claim for injury to right shoulder as result of nature and conditions of employment; claim for weekly benefits and cost of surgery paid for by applicant; Held – the applicant sustained injury to her right shoulder as a result of the nature and conditions of her employment; carpal tunnel release surgery reasonably necessary medical treatment as a result of accepted injury; the applicant has had no work capacity since payments of weekly compensation ceased; award for the applicant of weekly compensation pursuant to section 37; award for the applicant pursuant to section 60 for past medical expenses claimed; the parties have liberty to apply with respect to any further claim for section 60 expenses.
determinations made:	1. There is an award for the applicant of weekly benefits pursuant to s 37 of the Workers Compensation Act 1987 at the rate of $712.99 per week from 2 November 2021 to date and continuing. 2. There is an award for the applicant pursuant to s 60 of the Workers Compensation Act 1987 for the past treatment, care or related expenses claimed in the Application for Determination. 3. The parties have liberty to apply with respect to expenses pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Dijana Juka (Ms Juka) was employed by the respondent, Bankstown City Aged Care, as a care service employee, grade one. She commenced employment on
21 August 2018.
Ms Juka sustained an accepted injury to her right hand/wrist on 26 March 2021. She also claims that the injury was caused by the nature and conditions of her employment, both before and after 26 March 2021, and is due to the aggravation or acceleration of a disease. The applicant also claims to have sustained injury to her right shoulder.

The applicant completed a Worker’s Injury Claim Form (the claim form) dated 19 May 2021. The date of injury was recorded as 26 March 2021 (although it has also been noted as being 25 March 2021). The applicant stated that she was washing dishes when she dropped two dishes, due to a sudden burning sensation in her right arm. She suddenly lost feeling in her right arm.
The injury was recorded as right hand carpal tunnel syndrome (CTS) and wrist tendonitis. The applicant ceased work on 26 March 2021. She stated that she returned to work on
27 April 2021 and finished on 5 May 2021, as she could no longer do her tasks, due to lingering pain.
On 27 September 2021, Insurance and Care NSW (iCare), the respondent’s insurer, issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Icare disputed the applicant’s claim for surgery, the nature of which was not specified, but it is clear from other evidence that it was proposed right carpal tunnel release.
The notice stated that the applicant sustained injury to her right wrist on 26 March 2021, and a recent nerve conduction study revealed symptoms in both wrists. “Which would be indicative of a constitutional condition”. The applicant had advised her case manager that she was managing her left wrist injury, along with pain she was experiencing in the right shoulder, herself.
Icare recommended an independent medical examination to confirm “if this is a work related condition or is constitutional in nature noting the nerve conduction study are [sic] indicating there is a bilateral carpal tunnel syndrome”.
Icare issued the applicant with a further dispute notice dated 11 October 2021. It disputed liability for her “compensable workplace injury” on 26 March 2021. It disputed that she had sustained injury, that employment was a substantial contributing factor to injury; that employment was the main contributing factor to a “disease” injury, pursuant to ss 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act); and that Ms Juka was entitled to payment of either weekly benefits or medical expenses.
The applicant requested that iCare review its decision. On 28 April 2022, it issued her with an amended decision. It noted that liability for her alleged right shoulder injury had not been formally determined and was outside the scope of the review.
Icare withdrew the dispute pursuant to ss 4, 4(b) and 9A of the 1987 Act, with respect to the injury to the applicant’s right hand (CTS). However, it was “satisfied” that her ongoing incapacity and need for medical or related treatment, including the proposed surgery, was not related to her accepted right hand injury. She was not entitled to weekly benefits or payment of medical expenses.
The applicant lodged an Application to Resolve a Dispute (the Application) on 13 July 2022. She claimed that the nature and conditions of her employment, which involved repetitive lifting and the use of her arms, including lifting pots and pans, loading and unloading groceries, and lifting heavy milk crates and food in refrigerated environments, had caused, aggravated and accelerated injury to her right shoulder and wrist. The date of injury was pleaded as 26 March 2021.
The Application claimed weekly benefits from 2 November 2021, ongoing, pursuant to s 37 of the 1987 Act. It also claimed, pursuant to s 60 of the 1987 Act, past medical expenses of $3,676.95.
The respondent lodged its Reply on 4 August 2022.

ISSUES FOR DETERMINATION

The respondent outlined the following issues as remaining in dispute:
(a)    whether the applicant sustained injury to her right shoulder caused by the nature and conditions of the work she performed for the respondent;
(b)    whether the applicant suffers from an incapacity for work as a result of the alleged injuries, and
(c)    whether the need for the claimed medical treatment results from the alleged injury.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for in person conciliation/arbitration hearing on 7 October 2022. Mr Carney of counsel, instructed by Mr George and Mr Fisher, appeared for the applicant, who attended with her husband. Mr Doak of counsel appeared for the respondent, instructed by Mr Balan. Ms Hatfield from Employers Mutual Limited also attended.
No formal application was made by the respondent pursuant to s 289A(4) of the 1998 Act to place in dispute that the applicant had sustained injury to her right shoulder. However, the Reply sought to place in dispute that the applicant had sustained a compensable right shoulder injury or disease, and the matter was conducted on the basis that injury to the applicant’s right shoulder was disputed.
To the extent that it is necessary, the respondent is granted leave to dispute that the applicant has sustained injury to her right shoulder.
Unfortunately, the interpreter in the Croatian language who had been booked to assist the applicant at the conciliation/arbitration hearing did not attend. She was eventually contacted and attended by telephone.
Due to the time taken in arranging for the interpreter to attend, and subsequent attempts by the parties to resolve the dispute, it was not possible to proceed with the hearing on
7 October 2022.
Directions were made for the parties to provide written submissions. The parties were advised that, at the conclusion of the time allowed for submissions, the matter would be determined “on the papers”. Submissions have been received from both parties.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application and attachments;
(b)    Reply and attachments, and
(c)    Application to Admit Late Documents dated 21 July 2022 and attachments, filed by the applicant.

Oral evidence

There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Dijana Juka

Ms Juka’s statement is dated 11 July 2022.
She commenced work for the respondent on 27 August 2018, at an aged care centre called Yallambee Village. She was a full time kitchen hand, usually working five days per week, but sometimes six days. Her hours were from 6:30am to 2:30pm. Before commencing work, she underwent and passed a medical. She was in good health.
Her duties included preparing meals; washing up; feeding patients; and setting up the dining room. The work is constant and repetitive, involving the constant use of her arms for lifting pots and pans, loading and unloading groceries, and lifting heavy crates of milk and heavy rubbish bags.
She also worked in the cool room on Tuesdays and Thursdays, when they received groceries. She loaded them into the cool room. They were not provided with any protective clothing.
On 26 March 2021, she was washing dishes when she felt a burning sensation in her right arm, causing her to drop two dishes. She suddenly lost feeling in her right arm. She reported this to the facility manager, August Bokinski. He told her to go home. She believes an accident report was made.
She saw her general practitioner (GP), Dr Michael Pham, that day. He sent her for an ultrasound of her right hand.
She had about four weeks off work and used annual leave. During that time, she had some physiotherapy.
On about 27 April 2021, she returned to her normal duties. Her right arm had improved but it was not 100%. However, she was keen to go back to work.
She worked for the next few weeks and noticed her condition got worse. Her right wrist became swollen, and she started to notice pain in her right shoulder. She mentioned this to Dr Pham, who arranged an ultrasound of her right shoulder.
August noticed that her right hand was swollen and told her to go home straight away.
On about 6 May 2021, she went back to Dr Pham. He told her he thought her injury was work-related, so she decided to lodge a WorkCover claim.
She had another four weeks off work and tried to go back, at the insurer’s request. She found that after three days she could no longer cope and had to stop working. She had not returned to work.
Dr Pham referred her to a hand surgeon, Dr Tim Heath. He wanted to do an operation on her right wrist, but this was declined by iCare. She decided to pay for the operation herself.
Dr Heath operated at Kogarah Private Hospital on 14 October 2021. It cost her about $3,500.
She was having physiotherapy twice per week for her right wrist, right shoulder, and neck; and she was taking two Mobic tablets per day.
She was paid weekly payments until 1 November 2021.
She still gets pain in her right wrist, right shoulder, and neck. She gets numbness and pins and needles in her right thumb and the palm of her right hand. Her right arm is much weaker. She cannot lift anything heavier than about 1kg with her right hand. She does not believe she can go back to her pre-injury employment.

Medical evidence

Riverwood Medical Pty Ltd – general practitioner

Dr Elton Chen recorded on 8 March 2018 that the applicant went to A & E six months ago from work-related shoulder/chest injury, “negative cardiac investigation”.
On 26 March 2021, Dr Pham recorded that the applicant had right hand nocturnal tingling, mainly in the right palmar index finger. She “does quite manual work”. She was sent for ultrasound, after which physiotherapy would be considered.
Dr Pham recorded on 29 March 2021 that ultrasound had confirmed CTS in the right hand, probably due to repetitive manual labour with the applicant’s hands at work. She was to see a hand specialist and have physiotherapy. Ultrasound guided cortisone injection was noted.
On 21 April 2021, Dr Pham recorded that the applicant reported her CTS felt much better. She was keen to go back to work. A letter of support was provided for her employer. She was to return if her symptoms worsened and continue physiotherapy as an outpatient.
On 6 May 2021, Dr Pham recorded “worsening CTS”. The applicant was not improving conservatively. She agreed she needed to make a WorkCover claim. A hand surgeon referral was to be approved. She would need nerve conduction studies.
On 21 May 2021, Dr Pham recorded that the applicant was doing physiotherapy, with improvement to the right wrist. She now had right shoulder pain on lifting her arms up. “Probably bursitis”. She was to have an ultrasound.
Dr Pham noted “? subacromial bursitis ? supraspinatus tendinopathy. Has CTS and is overcompensating with her shoulder”.
On 24 May 2021, Dr Pham reported to “Steven” (assumed to be the applicant’s case manager).
Dr Pham recorded the diagnosis as right-sided CTS. Ultrasonography further evidenced this. The applicant was due to see Dr Heath, whom Dr Pham imagined would perform a nerve conduction study to further establish the diagnosis.
Dr Pham opined that the prognosis varied, depending on the success of various treatment, such as cortisone injections, physiotherapy, modification of activities and surgeries. It could be anywhere from three months to one year. The applicant was unlikely to be able to do any manual work with her right hand in that time, as it would likely exacerbate the problem.
The major precipitant of CTS was repetitive wrist movements, which cause compression of the median nerve. The applicant performed many repetitive hand and wrist motions, in keeping with her job. She is right hand dominant. She had no other risk factors for CTS.
Dr Pham believed the applicant would be able to return to her pre-injury duties anywhere from three months to one year, dependent on the success of treatment, and whether it needed to be escalated to surgery or cortisone injections.
On 28 May 2021, Dr Pham recorded that the applicant had had right shoulder ultrasound. “Bursitis noted”. She was still having some niggling pain with overhead movements. “Monitor for now. Ice packs nightly. Physio. Review 1 month for cortisone if still painful”. The reason for contact was noted as right subacromial bursitis.
On 31 May 2021, Dr Pham held a case conference with the applicant, rehabilitation consultant “Michael”, and physiotherapist Mr Ben Tieu of Firstline Physiotherapy. The applicant’s restrictions were revisited and her WorkCover certificate updated.
Dr Pham recorded right hand burning pain at night and right shoulder pain – “will try to have it as a secondary symptom but probably going to be Medicare. Physio for it to continue hopefully”. The applicant had a July appointment with a hand specialist.
On 10 June 2021, Dr Pham recorded that the applicant had burning pain in her hand at night. She could not sleep and was too exhausted to work.
On 16 June 2021, Dr Pham recorded a case conference. The applicant had been back at work part time, helping with residents “etc”. About 30 minutes into work, she started to have severe right wrist and shoulder pain. She was only helping residents mobilise by holding their arms “etc”. She was to stop for now. “Physio. Shoulder imaging”. She was also “for psychology under MHCP (mental health care plan)/Medicare in another appointment”.
On 22 June 2021, Dr Pham recorded that ultrasound of the right shoulder showed “bursitis subacromial as expected”. The applicant was for cortisone and physiotherapy.
On 30 June 2021, Dr Pham conducted another case conference with the applicant, Mr Tieu, Michael, and Steven – insurance. They were not accepting the right shoulder yet. He would need to prepare a report. The applicant would need to see Dr Heath for her hand.
On 14 July 2021, there was another case conference with the applicant, Mr Tieu, and “case manager Michael”. The applicant’s hand was progressing nicely. She was to have nerve conduction studies on 20 July 2021, followed by surgery. Dr Pham was awaiting the questionnaire from the insurance regarding the applicant’s right shoulder, and “will decide what to do following that”.
On 5 August 2021, Dr Pham recorded that the applicant’s shoulder was really painful. There was no documentation putting this on WorkCover yet. “Might have to just put it through and let the insurer challenge it”. The applicant could do cortisone first and was to keep the receipt. If the shoulder improved with a one off injection “then that’s that”. If it did not improve and she needed further physio “etc”, Dr Pham would need to put it on the certificate for approval.
On 3 September 2021, Dr Pham recorded that ongoing physiotherapy was beneficial. The applicant was awaiting nerve conduction studies and then release with hand surgeon.
On 4 September 2021, Dr Pham recorded that the applicant’s right shoulder was still very painful. It was not included under WorkCover yet. The applicant was “for cortisone and imaging” and would then need to try again with insurance. She was happy to pay to have cortisone done for relief.
Dr Pham recorded the actions as X-ray and ultrasound of the right shoulder “+/- cortisone injection to right shoulder – likely bursitis of shoulder in context of heavy manual work for long hours per week”.
On 5 October 2021, Dr Pham recorded that the applicant was awaiting surgery with Dr Heath and was then for “hand physio/rehab”. It was “NOT approved for some reason”. He needed a case conference. Dr Heath agreed she needed release in the right wrist. They also needed to bring up the shoulder – “not related due to Dr Tim Heath”.
On 6 October 2021, Dr Pham recorded that the applicant’s surgery had been refused. He, the physiotherapist, and the hand specialist agreed she needed carpal tunnel release surgery.
On 18 October 2021, registered nurse Ly Nguyen recorded that the applicant had had right carpal tunnel repair last week. She had presented for wound care. She was seen by
Dr Pham.
On 26 October 2021, Dr Pham recorded that the applicant had surgery 12 days ago. She was not doing well mentally. A MHCP was completed.
On 2 November 2021, Dr Pham recorded that the applicant’s claim had been closed. She had bursitis of the right shoulder and was to have cortisone and aspiration. Her carpal tunnel had been released. She was “rehabbing it, paying privately”.
Dr Pham certified the applicant with capacity to work for eight hours per day, three days per week, from 4 June 2021 to 15 June 2021, with restrictions. He again certified her as having no work capacity from 11 June 2021 to 30 June 2021, as she was “having quite a lot of right arm, shoulder and wrist pain about 30 minutes into work – need to investigate”.
The applicant was consistently certified as having no work capacity from 11 June 2021 to
1 October 2021. There are no certificates of capacity (COCs) that post-date this period.

Dr Tim Heath – hand surgeon

Dr Heath reported first to Dr Pham on 5 July 2021.
Dr Heath recorded a history of burning, fire, and itching in the right hand from February 2021. The symptoms first occurred at work, but were now regularly occurring, particularly at night. There was numbness in the fingertips, worst in the thumb and small finger.
At the same time, the applicant had developed right shoulder pain and stiffness. She had been advised to avoid use of the hand and had become very hesitant about right hand motion. She was wearing a wrist splint full time.

Dr Heath opined that the applicant probably had right CTS, but the findings were not sufficiently clear cut for him to recommend treatment without performing nerve conduction studies. He had recommended that she not protect her right hand, as that would only set her up for a more nervous, hesitant, post-operative recovery if she required surgery.
Dr Heath suggested the applicant have her shoulder pain assessed by a shoulder surgeon. The pain did not appear to be caused by her CTS.
On 16 September 2021, Dr Heath reported that nerve conduction studies confirmed moderately severe right CTS, with both sensory and motor involvement. The left hand was more mildly affected and asymptomatic.
The applicant continued to have regular uncomfortable symptoms in the right hand, clearly related to CTS. Dr Heath doubted that all her shoulder symptoms were related to this.
The applicant was keen to proceed with surgery, and the operation was planned for
7 October 2021. Dr Heath expected a return to light duties after about three weeks, and pre-injury duties in about six weeks. There was no need for surgery in the applicant’s left hand while she remained asymptomatic.

Dr Michael McGlynn – hand and plastic surgeon

Dr McGlynn was qualified by the respondent and reported on 5 October 2021. He had assessed the applicant by Telehealth.
Dr McGlynn recorded a consistent history of the injury and treatment. He noted that the applicant described doing some heavy manual tasks, such as lifting and carrying 20kg packs of rice, packs of bulk food and vegetables.
The applicant complained of pain and tingling discomfort in the right thumb and fingers. She sometimes woke with numbness in her hand. She had recently begun to feel numbness in the proximal palm of her left hand, with tingling in the fingertips. She attributed this to greater use of her left hand because of symptoms affecting her right. She had reduced strength in her right hand.
Dr McGlynn opined that the applicant’s history, examination, and investigations were consistent with symptomatic right CTS, and suggested asymptomatic left CTS. Her work had not been a substantial or main contributing factor to CTS.
Dr McGlynn opined that, except in the case of work that involves cold temperatures, possibly in conjunction with load and repetition, such as butchery, work is less likely than demographic and disease-related variables to cause CTS. There is no evidence that manual work of the type done by the applicant causes CTS.
Symptoms of CTS are exacerbated by most manual tasks, both at work and leisure. However, Dr McGlynn opined that the applicant’s work tasks would not cause or aggravate the condition, making it worse. Her CTS was most likely constitutional and would have occurred at about that time of life regardless of her employment. Her condition had not improved in the time she had been away from work.
The applicant’s COC stated she had no capacity for work. In Dr McGlynn’s opinion, she had some capacity. She could do restricted duties, avoiding repetitive right-hand tasks, with a 2kg lifting limit, and short rest periods when symptoms were exacerbated. Her work tasks may exacerbate, but not cause or worsen, the condition.
Dr McGlynn was advised that the respondent could provide a wide variety of sedentary suitable duties that generally allowed for alteration in posture and gait, and rest breaks. He opined that she could undertake such light duties.
Dr McGlynn opined that the appropriate treatment for right CTS was surgical release of the carpal ligament to reduce pressure on the median nerve. This procedure meets the criteria of appropriateness, effectiveness, and acceptance, and is relatively inexpensive. There was no reasonable alternative. Surgical treatment produces improvement in almost all cases.
The applicant’s treatment had been appropriate but ineffective. Conservative treatment had failed, and the next option was surgical treatment. The prognosis was good, as most cases of CTS resolve following surgery.

Dr Terry Kwong – consultant physician and rheumatologist

Dr Kwong was qualified by the applicant and reported on 20 December 2021.
Dr Kwong recorded a consistent history of the injury. The applicant’s duties involved repetitive use of her arms, lifting pots and pans, and loading and unloading groceries. She had to lift heavy crates of milk and heavy rubbish bags. On 6 May 2021, she noticed swelling in her right hand. She also complained of right shoulder pain. She was sent home.
The applicant attempted to return to work on modified duties, talking to residents. She worked for a few days and stopped.
Ms Juka had severe pain in her right shoulder and right hand at night. Dr Pham ordered an ultrasound of her right shoulder, which showed subacromial bursitis. Nerve conduction of her right wrist confirmed CTS.
The applicant saw Mr Tieu. She had treatment for her right shoulder and a wrist splint.
Dr Pham treated her with Mobic. Dr Heath had recommended surgery for right CTS. Liability for surgery was initially accepted, but funding was cancelled the week before the surgery.
Dr Kwong recorded that the applicant had severe right wrist and hand pain, and severe sleep disturbance due to right hand pain, numbness, and paraesthesia.
The applicant underwent right carpal tunnel release on 14 October 2021. The severe pain at night had improved. She had residual paraesthesia and intermittent electrical shocks in her right arm. She was still wearing a sling. Her right shoulder pain persisted. As a result of chronic pain, she had developed reactive depression.
The applicant complained of intermittent pain in her right wrist and hand, especially her right thumb, index, and middle fingers. She had intermittent paraesthesia in her right hand and woke occasionally due to paraesthesia and numbness. She had intermittent right shoulder pain, difficulty elevating her right arm above her shoulder, and difficulty lying on her right side due to shoulder pain.
Dr Kwong diagnosed right shoulder impingement syndrome due to subacromial bursitis, and right CTS post-surgical decompression.
Dr Kwong opined that the applicant’s right shoulder impingement syndrome and right CTS were due to the nature and conditions of her duties, which involved repetitive lifting and use of her arms. She also had to lift milk crates and food in refrigerated environments. This increased her risk of developing CTS.
The applicant had been totally incapacitated for work from 26 March 2021 to date.
In Dr Kwong’s opinion, there was no evidence of pre-existing condition/disease. He was asked whether employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the applicant’s condition. He responded that it was.
The applicant had active impingement syndrome in her right shoulder. She required physiotherapy and ultrasound guided injection.

SUBMISSIONS

The parties have provided written submissions, to which I will refer briefly.

Applicant

The applicant submitted that the facts are set out in her statement dated 1 July 2022.
The applicant was referred to Dr Heath, who performed carpal tunnel release at her own expense. Dr Pham had recorded that she had right shoulder pain with lifting, and she was overcompensating for CTS with her shoulder. Mr Tieu treated both her right wrist and shoulder.
The applicant submitted that Dr Heath confirmed her CTS and the need for release. He doubted that “all of her” shoulder symptoms were related to this.
The applicant submitted that Dr Kwong gives clear support for her right wrist and right shoulder. He opined that her right shoulder impingement syndrome and CTS are the result of the nature and conditions of her employment.
The applicant referred to Dr McGlynn’s history of “some” heavy lifting, but importantly no work in a cool room or repetitive duties. She submitted this contrasts with her statement and the history given to Drs Pham and Kwong, and it appears the incomplete history is the reason for Dr McGlynn’s diagnosis. For this reason, the opinions of Drs Heath, Pham and Kwong would be preferred.
As regards incapacity, the applicant submitted that Dr Pham had certified her with no capacity up to 1 October 2021. Dr Kwong found her unfit for any duties in his report dated
20 December 2021.
Dr McGlynn found on 8 October 2021 that the applicant had capacity to work with restrictions. She submitted they would render her unfit for her pre-injury duties. She relied on the principle of continuity, in the absence of any evidence that she can perform her pre-injury duties.
The applicant finally submitted that I would find that her duties included repetitive duties with her right wrist and shoulder, and they included some heavy lifting and work in a cool room. The duties caused the injury to her right wrist and shoulder. She submitted I would accept the opinions of Drs Pham, Heath and Kwong over Dr McGlynn’s opinion. She has ongoing incapacity as per the evidence and her statement that she cannot go back to her pre-injury employment.
In reply to the respondent, the applicant disagreed that there were no symptoms in her right shoulder as at 26 March 2021 and submitted the complaint of “loss of feeling in the arm” was a complaint of a symptom that also involved the shoulder.
The applicant submitted that the period from 26 March 2021 to 21 May 2021 is a relatively short period when her pre-occupation was with her symptomatic right wrist, as evidenced by Dr Pham’s notes. Furthermore, she continued working for some of this period.
The applicant submitted that Dr Kwong’s report contains a history that can be relied upon to prove the fact of injury. Section 77 of the Evidence Act 1995 NSW allows for evidence admitted for one purpose to be used for all purposes.
The applicant submitted that Dr Pham’s comment on 31 May 2021 is irrelevant; and the omission of reference to her right shoulder in the COCs, lack of direct evidence from
Dr Pham and his report to “Steven” are not relevant to the case she makes.
The applicant submitted that Dr Heath’s opinion that the shoulder is not related to the carpal tunnel injury is consistent with Dr Kwong’s evidence and her statement, in which she said she lost feeling in her arm and felt pain in her shoulder while working.
The applicant disagreed that her evidence, Dr Pham’s clinical records, and the claim form do not support her allegation of injury to the right shoulder caused by the nature and conditions of employment.
The applicant submitted that there is no basis to the respondent’s submission that Dr Kwong based his opinion on “assumptions”. He does not say he made an assumption as to the facts on which he based his opinion, nor is there any letter instructing him to make assumptions. He based his opinion on the history, and when making a diagnosis applied his clinical observation to the noted pathology and history.

Respondent

The respondent’s insurer has accepted liability for the injury to the applicant’s right wrist. It maintained a dispute as to liability for any injury to the right shoulder, incapacity, and the need for carpal tunnel release surgery to the right wrist.
The respondent submitted that, notably, the applicant does not rely on an allegation of consequential loss or condition to the right shoulder. The manner in which she has pleaded her case on the issue of injury is not supported by the evidence.
The respondent submitted that the applicant stated that she experienced a sudden loss of feeling in her right arm on 26 March 2021. She did not refer to any symptoms in her right shoulder at that time. Her evidence is that she started to notice pain in her right shoulder on an unspecified date, which she reported to her GP. He referred her for an ultrasound. That evidence does not provide any basis on which the Commission could find that the nature of the applicant’s work for the respondent caused the alleged right shoulder injury.
The respondent submitted that the applicant submitted a claim form notifying “right hand carpal tunnel syndrome and wrist tendonitis”. She did not report any injury to her right shoulder. The respondent’s injury report does not refer to a report of injury to the right shoulder.
The respondent referred to Dr Pham’s records. At each consultation from 26 March 2021 to 17 May 2021, no complaint of right shoulder symptoms was recorded. It submitted the only available inference is that the applicant was not experiencing right shoulder symptoms at the time of the consultations. That finding is open, based on those records: Stanshall v The Urban Fringe Kings Langley Pty Limited [2021] NSWPICPD 23.
The respondent submitted that in the absence of a proper foundation for Dr Pham’s conclusion on 21 May 2021 that the applicant was “overcompensating” with her right shoulder, his comment can be given little weight. It submitted that the more fundamental difficulty is that, given the way she has pleaded her case, she must show that it was her work with the respondent that caused injury to her right shoulder. In the absence of a claim for consequential loss, it is not enough for her to point to a report of “overcompensating”.
The respondent submitted the applicant has not led evidence to the effect that she was engaged in activity at work that caused the alleged right shoulder injury, either directly or due to overcompensating. There is a singular absence of any evidence from the applicant or any other factual source to support any finding that she suffered a right shoulder injury, either primarily due to the nature of the work she was performing, or the additional load on the right shoulder after March 2021, due to limitation on the use of her right wrist.
The respondent referred to the entry in Dr Pham’s records on 31 May 2021. It submitted that the reference to a secondary symptom strongly suggests Dr Pham did not consider the right shoulder symptoms reported first on 21 May 2021 were related to the applicant’s employment. It is also important to note the medical certificates issued by Dr Pham did not refer to any injury to the right shoulder, despite some having been issued after 21 May 2021.
The respondent submitted it is significant that the applicant has not sought to rely on evidence from Dr Pham directly addressing the issue of causation of her right shoulder symptoms. This further limits the weight that can be given to any reference in his records to the right shoulder being work related.
The respondent referred to the report from Dr Pham to “Steven” dated 24 May 2021. It submitted it is important to note it is dated four days after the applicant reported right shoulder symptoms. However, Dr Pham did not refer to the right shoulder as having a work-based cause. That is a significant omission that has not been explained in the applicant’s evidence. The two referrals to Dr Heath do not refer to any symptoms in the applicant’s right shoulder.
The respondent referred to Dr Heath’s evidence that the applicant’s right shoulder pain did not appear to be caused by her carpal tunnel symptoms. It submitted that her statement evidence, Dr Pham’s contemporary clinical records and the claim form do not support the allegation of injury to the right shoulder caused by the “nature and conditions” of employment.
The respondent submitted that the applicant’s case in support of the allegation of injury to the right shoulder is really based on Dr Kwong’s report dated 20 December 2021. The assumed history relied on by Dr Kwong is not supported by the very limited version of events given by the applicant, the records of Dr Pham, or the contemporaneous records.
The respondent submitted that the history recorded by a medico-legal expert does not constitute primary factual evidence. It is a factual assumption on which the expert’s opinion is based, which in turn must be established through other evidence to ground that opinion. There is no evidence to provide the factual basis to support the assumptions on which Dr Kwong relied.
The respondent submitted that Dr Kwong did not explain how the movements involved in the applicant’s work activity and the possible forces involved resulted in injury to the right shoulder, in the form of subacromial bursitis, first reported to Dr Pham in late May 2021.
The respondent submitted that Dr Kwong’s report is fundamentally deficient and cannot be given any weight on the issue of allegation of injury to the right shoulder. The reasons are that the factual assumptions on which his opinion is based are not established by the evidence; and he has failed to provide a properly reasoned basis for his opinion, to allow the Commission to be satisfied it is properly based.
The respondent referred to the decision of Acting President Roche, as he then was, in Krstevska v Fast & Fluid Management Australia Pty Ltd [2012] NSWWCCPD 69, in which he cited the observations of Beazley JA in Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11, at [82].
The respondent also referred to the decision of McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, regarding the weight to be given to expert medical evidence in the former Workers Compensation Commission. Her Honour’s observations were cited with approval by President Phillips in Brannigan v Elbon Consulting Services Pty Limited [2021] NSWPICPD 27, [at 136].
The respondent submitted that there cannot be said to be any basis on which the factual evidence is “sufficiently like” the assumptions on which Dr Kwong based his opinion. On that basis alone, the report cannot be given any weight.
Dr Kwong has asserted that the applicant’s right shoulder impingement “syndrome” is due to the “nature and conditions” of her work. Contrary to the fundamental requirements of the giving and reception of expert opinion, he has not set out his reasoning. He has provided a “bare ipse dixit” which leaves the Commission to speculate as to the basis for his opinion, and specifically how he has applied his expertise to a set of accepted facts to reach his conclusion. The respondent submitted that in the absence of such analysis, his evidence can be given little, if any, evidentiary weight.
The respondent submitted that the Commission could not be satisfied that the applicant has established that she has suffered a right shoulder injury and should enter an award in its favour.
As regards incapacity, the respondent relied on the opinion of Dr McGlynn, who considered the applicant had capacity for some lighter forms of work in aged care.
The applicant relied on the opinion of Dr Kwong that she had been totally incapacitated for work since March 2021, and at the time of his assessment in December 2021 was unfit for any duties.
The respondent submitted that the difficulties with Dr Kwong’s opinion are that it retrospectively commented on the applicant’s capacity for work based on limited (and incorrect) information; and it took into account both her right hand symptoms and the alleged injury to the right shoulder. Dr Kwong has not sought to identify the incapacity that flows from each injury.
Dr Pham has issued COCs in which he has variously certified the applicant totally and partially unfit for work. The respondent submitted that in his report dated 24 May 2021, he stated that he considered the applicant would be fit to return to pre-injury duties some time between three months and one year from that date, depending on the success of treatment. There is no report from him updating that opinion. (Emphasis in original)
Dr Heath reported on 16 September 2021 that he considered the applicant would be capable of returning to light duties in three weeks and pre-injury duties in six weeks.
The respondent submitted that the evidence supports a finding that the applicant was partially incapacitated for work until about mid-October 2021 and has been fit for pre-injury duties since that date.

As regards treatment expenses, the respondent submitted that, notwithstanding that the need for right carpal tunnel release remains disputed in its notice dated 28 April 2022,
Dr McGlynn accepted that the procedure is appropriate to treat carpal tunnel symptoms.

SUMMARY

Dealing first with the injury to the applicant’s right wrist, the respondent now concedes that Ms Juka has sustained injury, that is CTS, to her right wrist, arising out of or in the course of her employment.
Dr Heath, the applicant’s treating specialist, opined that carpal tunnel release surgery was the appropriate treatment for her condition. Dr McGlynn, although he did not accept that Ms Juka’s CTS resulted from her employment with the respondent, agreed that surgery was the appropriate treatment. He broadly addressed the criteria referred to by Deputy President Roche in Diab v NRMA Ltd [2014] NSWWCCPD 72.
The respondent properly did not submit that the surgery the applicant has undergone was not reasonably necessary medical treatment. The evidence on this issue is all one way. I have therefore determined that the right carpal tunnel release surgery was reasonably necessary medical treatment. The respondent is to pay the cost of the surgery and associated expenses.
The respondent disputes that the applicant has sustained injury to her right shoulder as a result of the nature and conditions of her employment.
I do not accept the respondent’s submission that there is insufficient evidence from the applicant or any other factual source to support a finding that she has sustained injury to her right shoulder.
The applicant has given evidence, albeit somewhat brief, about the heavy and repetitive nature of her work for the respondent. It has not been contradicted by any evidence from the respondent, and I see no reason not to accept it. Dr Pham recorded that she did “quite manual work” and that she did “repetitive manual labour with her hands”. As a matter of common sense, that must have also involved her arms.
Both Dr Kwong and Dr McGlynn also recorded a history that the applicant’s work involved some heavy manual tasks. Dr McGlynn in fact noted that she sometimes had to lift 20kg weights. He opined that the type of manual work she performed did not cause CTS, but there is no evidence from him regarding whether it could have caused injury to her shoulder.
The respondent submitted that the history recorded by an expert does not constitute primary factual evidence, but is an assumption on which his or her opinion is based, and the assumption must be established through other evidence.
A medical history is evidence of the facts recorded: Guthrie v Spence [2009] NSWCA 369 at [75]; Smith v Parkes Shire Council [2010] NSWWCCPD 130 at [96] (confirmed on appeal to the Court of Appeal in StateCover Mutual Ltd v Smith [2012] NSWCA 27); and Lukac v Berkeley Challenge Pty Ltd t/as Spotless [2016] NSWWCCPD 56 at [126].
I do not believe it is determinative of the issue that Dr Pham did not record a history of symptoms in the applicant’s right shoulder between 26 March 2021 and 21 May 2021. As the applicant submitted, this was a relatively short period, the focus was on her right wrist symptoms, and she continued to work. I do not accept the respondent’s submission that the “only available inference” is that the applicant was not experiencing symptoms at the time.
Dr Pham may have believed the applicant’s right shoulder symptoms were due to over-compensating, but that is not Dr Kwong’s specialist opinion. A possible error in diagnosis by a GP does not mean that the applicant has not sustained an injury to her right shoulder. In any event, on 24 September 2021, Dr Pham recorded that the applicant likely had bursitis of her shoulder in the context of heavy manual work for long hours per week. This provides some support for the “nature and conditions” claim.
The fact that Dr Pham did not include reference to injury to the applicant’s right shoulder in his report to “Steven” dated 24 May 2021 does not, in my view, mean that she was not experiencing symptoms in her shoulder.
It appears that Dr Pham was responding to questions posed to him, as the report contains numbered paragraphs, including paragraphs 2(a) to 2(f). The questions are not in evidence. The answers suggest they were directed to the condition of CTS.
I also do not accept that Dr Pham’s notation that “will try to have it [the right shoulder pain]” accepted as a secondary symptom, but it was probably going to be Medicare, strongly suggests that he did not consider the symptoms were related to employment. In my view, it reflects nothing more than that he did not expect that any claim for injury to Ms Juka’s right shoulder was likely be accepted at that stage. He made this record after a case conference on 31 May 2021.
Dr Pham’s clinical records thereafter include notations that suggest he believed the applicant’s right shoulder symptoms were related to her work, but liability for the injury had not been accepted. They include a note that “they were not accepting the right shoulder yet”, and he would need to prepare a report; he was awaiting a questionnaire about the injury; it had yet to be put on WorkCover; and he “might just have to put it through and let the insurer challenge it”.
Dr Pham also recorded that if the applicant’s condition improved with a one-off cortisone injection, then “that’s that”, but if she needed further treatment, he would have to put it on the COC for approval. It appears that he was hoping some limited treatment under Medicare would resolve the symptoms. I do not therefore accept the respondent’s submission that it is important that he did not include the right shoulder injury on the COCs.
Dr Heath doubted that all the applicant’s shoulder symptoms were related to her CTS. That does not assist me in the determination I must make. The applicant does not seek to make the case that her shoulder symptoms are related to her CTS. Dr Heath said the pain was not caused by her CTS but suggested she would need to see a shoulder specialist. He obviously did not feel that assessment of her right shoulder condition was within his field of expertise.
I do not accept the respondent’s submission that Dr Kwong’s opinion is a bare ipse dixit, or that the factual evidence is not “sufficiently like” the assumptions on which he based his opinion, so that his report can be given no weight.
As the applicant submitted, Dr Kwong has based his opinion on the history, and when making a diagnosis, applied his clinical observation to the noted pathology and history. He recorded the applicant’s duties, and I have accepted her evidence in this regard; he has made a diagnosis; he has recorded the applicant’s symptoms; and he opined that employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of her condition.
The respondent relies on no qualified medical evidence with respect to the injury to the applicant’s right shoulder. She, of course, bears the onus, but I am persuaded by the evidence of, in particular, Dr Kwong, that she has sustained injury to her right shoulder as a result of the nature and conditions of her employment.
As regards incapacity for work, Dr Pham certified the applicant as having no capacity until
1 October 2021. There are no further COCs. Dr McGlynn, at about the same time, opined that she had some capacity for work, but he was assessing only incapacity as a result of her CTS. The description of the suitable duties that the respondent was said to be able to provide lacks detail.
In December 2021, Dr Kwong opined that the applicant had had no capacity for work since 26 March 2021. The applicant relies on the principle of continuity, in the absence of any evidence that she can perform her pre-injury duties.
The applicant’s statement was made in July 2022, and she has given evidence of the symptoms she still experienced at that stage. She was having physiotherapy twice a week.
Ms Juka’s vocational background is that of a chef in Germany, where she also ran a restaurant. In Australia, her work has been that of a kitchen hand. English is not her first language, and she required considerable assistance from an interpreter at the preliminary conference. Her husband assisted her at the conciliation/arbitration hearing until contact was made with the interpreter.
Having considered the applicant’s evidence, and that of Drs Pham, Kwong and McGlynn, I am satisfied that the applicant has had no capacity for work from 2 November 2021, when her claim for weekly benefits commences. I do not believe that she would be successful in obtaining a clerical or sedentary position.
The applicant claims that her pre-injury earnings (PIAWE) were $891.24 per week. That is the PIAWE adopted by iCare when it advised her that it would commence provisional payments of compensation. It has not been disputed in the Reply, and I have accordingly accepted it as the PIAWE. The weekly rate of compensation, pursuant to s 37 of the 1987 Act, is $712.99 per week ($891.24 x 80%).
The Application makes no claim for future s 60 expenses, and no application has been made to amend it to claim such expenses. I have therefore not made a general order for s 60 expenses but will give the parties liberty to apply.
In summary, I have determined that the applicant has sustained injury to her right shoulder arising out of or in the course of her employment with the respondent. Surgery, in the form of right carpal tunnel release, was reasonably necessary as a result of injury to her right wrist arising out of or in the course of her employment. She has had no capacity for work from
2 November 2021.
The orders are as set out in the Certificate of Determination.

[2023] NSWPIC 30

24 January 2023